IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 8

Laron Young, Plaintiff and Appellant

v.

Burleigh Morton Detention Center, Defendant and Appellee

and

Reliance Telephone Systems, Defendant 

No. 20200153

Appeal from the District Court of Burleigh County, South Central Judicial 

District, the Honorable David E. Reich, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Laron Young, Devils Lake, ND, plaintiff and appellant; submitted on brief.

Lawrence E. King and Alyssa L. Lovas, Bismarck, ND, for defendant and 

appellee; submitted on brief.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JANUARY 12, 2021 

STATE OF NORTH DAKOTA
1

Young v. Burleigh Morton Detention Center

No. 20200153

McEvers, Justice.

[¶1] Laron Young appeals from a summary judgment in favor of Burleigh 

Morton Detention Center (“BMDC”). He argues BMDC violated his Sixth 

Amendment right to legal counsel. He also argues BMDC’s policy concerning 

inmate telephone calls violates N.D.C.C. § 12-44.1-14, which provides rights 

for inmates. We affirm.

I

[¶2] Young was an inmate at BMDC. Reliance Telephone of Grand Forks, 

Inc. (“Reliance”) contracts with BMDC to operate its inmate telephone system. 

Every call that is not listed as “private” within the Reliance system is 

automatically recorded. It is undisputed that the telephone number for 

Young’s attorney was not on the list of private numbers and various calls 

between himself and his attorney were recorded.

[¶3] Young sued BMDC and Reliance arguing his Sixth Amendment right to 

counsel was violated and that BMDC had not complied with N.D.C.C. § 12-

44.1-14(1), which requires correctional facilities to ensure inmates have 

confidential access to their attorneys. The district court dismissed the claims 

against Reliance for lack of jurisdiction. The court granted summary judgment 

in favor of BMDC concluding Young had not alleged facts to support a finding 

that he was prejudiced by the recordings and therefore his right to counsel was 

not violated. The court also concluded Young had not alleged facts to support 

a finding that BMDC violated N.D.C.C. § 12-44.1-14(1).

II

[¶4] Our standard for reviewing appeals from a summary judgment is well

established:

Summary judgment is a procedural device for the prompt 

resolution of a controversy on the merits without a trial if there 

are no genuine issues of material fact or inferences that can 
2

reasonably be drawn from undisputed facts, or if the only issues to 

be resolved are questions of law. A party moving for summary 

judgment has the burden of showing there are no genuine issues 

of material fact and the moving party is entitled to judgment as a 

matter of law. In determining whether summary judgment was 

appropriately granted, we must view the evidence in the light most 

favorable to the party opposing the motion, and that party will be 

given the benefit of all favorable inferences which can reasonably 

be drawn from the record. On appeal, this Court decides whether 

the information available to the district court precluded the 

existence of a genuine issue of material fact and entitled the 

moving party to judgment as a matter of law. Whether the district 

court properly granted summary judgment is a question of law 

which we review de novo on the entire record.

Golden v. SM Energy Co., 2013 ND 17, ¶ 7, 826 N.W.2d 610 (quoting Hamilton 

v. Woll, 2012 ND 238, ¶ 9, 823 N.W.2d 754).

A

[¶5] Young argues BMDC violated his constitutional right to counsel when 

Reliance recorded and retained telephone calls between himself and his 

attorney.

[¶6] Defendants in criminal proceedings are guaranteed the right to counsel 

by the Sixth Amendment to the United States Constitution and N.D. Const. 

art. I, § 12. State v. Dvorak, 2000 ND 6, ¶ 9, 604 N.W.2d 445. “[T]he prosecutor 

and police have an affirmative obligation not to act in a manner that 

circumvents and thereby dilutes the protection afforded by the right to 

counsel.” Ellis v. State, 2003 ND 72, ¶ 8, 660 N.W.2d 603 (quoting Maine v. 

Moulton, 474 U.S. 159, 171 (1985)). Inherent in the right to counsel is the 

privacy of attorney-client communications. State v. Clark, 1997 ND 199, ¶ 14, 

570 N.W.2d 195.

[¶7] We addressed the issue of a correctional facility monitoring an inmate’s 

telephone conversations with his attorney in Clark, 1997 ND 199. Clark was 

in custody awaiting trial on murder charges. Id. at ¶ 2. A correctional officer 
3

monitored a telephone call between Clark and his attorney. Id. at ¶ 12. Clark 

moved for sanctions, including suppression of evidence, attorney fees, and 

dismissal of the case. Id. at ¶ 13. The district court denied his motion finding, 

among other things, that there was no evidence that the monitoring of the call 

revealed a defense strategy and there was no likelihood it provided an 

advantage to the State. Id. We affirmed explaining:

“[P]ost-arrest actions that interfere with the right to counsel do not 

per se violate the Sixth Amendment. Weatherford v. Bursey, 429 

U.S. 545 (1997). Only where the actions produce, directly or 

indirectly, evidence offered against defendant at trial has there 

been a deprivation of the right to counsel.” United States v. 

Shapiro, 669 F.2d 593, 598 (9th Cir. 1982).

Clark, at ¶ 14. In Ellis, we reiterated that “a Sixth Amendment violation 

occurs only if the government knowingly intrudes into the attorney-client 

relationship, and the intrusion demonstrably prejudices the defendant, or 

creates a substantial threat of prejudice.” 2003 ND 72, ¶ 16.

[¶8] Young’s complaint alleges BMDC violated his Sixth Amendment right to 

counsel “by illegally recording and warehousing [his] attorney-client phone 

calls.” BMDC moved for summary judgment arguing there was no evidence or 

claim the government listened to the recordings or used them against Young. 

Young responded with a cross-motion for summary judgment asserting: “I have 

over 72 hours of recorded attorney-client phone calls that the Defendant 

recorded and stored. The pure existence of the calls remove any issues of

material fact.” The district court granted BMDC summary judgment holding 

Young had not identified any facts that could establish he was prejudiced by 

the recordings.

[¶9] The record supports the district court’s decision. As the court noted, 

Young did not identify any criminal charges he was facing, what specific 

recordings were used to his detriment, the outcome of any criminal proceeding, 

or how the recordings may have been used to the government’s advantage. On 

appeal, Young implies a prosecutor listened to the recordings by claiming his 

attorney “informed me of a unnerving conversation with the U.S. Attorney 
4

where she mentioned a portion of the defense strategy that me and him were 

discussing.” There is nothing in the record to support this vague factual 

allegation; we therefore will not consider it. See Oien v. Oien, 2005 ND 205, ¶ 

11, 706 N.W.2d 81 (“we will not consider evidence presented for the first time 

on appeal”). To the extent relief may be available for Young’s claim, he has not 

alleged facts to support a finding that BMDC knowingly intruded into the 

communications he had with his attorney or that prejudice or a substantial 

threat of prejudice exists. We conclude the district court did not err when it 

granted BMDC summary judgment on Young’s Sixth Amendment claim.

B

[¶10] Young asserts BMDC violated N.D.C.C. § 12-44.1-14(1) by requiring 

inmates to provide their attorneys’ telephone information to correctional 

facility staff for confidentiality and by recording calls he made to his attorney.

[¶11] Section 12-44.1-14(1), N.D.C.C., states:

Subject to reasonable safety, security, discipline, and correctional 

facility administration requirements, the administrator of each 

correctional facility shall:

1. Ensure inmates have confidential access to attorneys

and their authorized representatives.

[¶12] It is undisputed that BMDC generally does not obtain telephone 

numbers for inmates’ attorneys. BMDC relies on inmates or their attorneys to 

register the numbers as private numbers not to be recorded. Young argues 

this policy does not comply with N.D.C.C. § 12-44.1-14(1), which he claims 

places the “onus of ensuring that an inmate[’]s attorney calls were not 

monitored or recorded, as well as the duty to obtain and verify an inmate[’]s

attorney, onto the administrator of each correctional facility not the inmates

themselves.”

[¶13] We do not agree. Allowing inmates to register their attorneys’ numbers 

as private complies with the statutory requirement that inmates have 

confidential access to their attorneys. The plain language of the statute does 

not require correctional facilities to affirmatively identify an inmate’s 
5

attorney’s telephone number as Young suggests. Rather, by its own language, 

N.D.C.C. § 12-44.1-14 is “subject to reasonable . . . correctional facility

administration requirements.” We conclude BMDC’s policy allowing inmates 

or their attorneys to register attorney telephone numbers as confidential 

numbers not to be monitored does not constitute a violation of N.D.C.C. § 12-

44.1-14(1).

[¶14] Young also asserts BMDC violated a state correctional facility standard. 

Under N.D.C.C. § 12-44.1-24, the North Dakota Department of Corrections and 

Rehabilitation must provide rules for the care and treatment of inmates and 

make those rules available to inmates. Young argues BMDC violated one of 

these rules by recording the telephone calls with his attorney. Young 

misconstrues that rule—which is titled Standard 84 in the North Dakota 

Correctional Facility Standards—as a statutory “subpart.” The Standards are 

not statutory provisions drafted by the legislature. They are not 

administrative rules subject to the requirements of the Administrative 

Agencies Practice Act under N.D.C.C. ch. 28-32. With the exception of certain 

activities of the division of adult services under N.D.C.C. ch. 54-23.4, the 

Department is not considered an administrative agency under N.D.C.C. § 28-

32-01(2)(m). The rules are created by the Department and subject to revision

by the Department. Contravention of the Standards does not necessarily 

constitute a statutory violation. Even assuming a specific Department of 

Corrections and Rehabilitation standard was violated, Young’s arguments and 

allegations do not establish a violation of N.D.C.C. § 12-44.1-14.

III

[¶15] We affirm the summary judgment.

[¶16] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte